ABSTRACT
From the time of de-colonialization the international (donor) community has played a critical role in designing and re-designing post-colonial land tenure schemes in sub-Saharan Africa. Large donor agencies, such as the World Bank, have for many years been interested in identifying the interconnections between land reform, economic development and poverty alleviation. The World Bank has in its policy indicated the benefits of building on communal and customary structures in formalizing land tenure, a strategy that has been believed to support development from the bottom up (World Bank 2003). The analytical point of departure of this chapter is the feminist argument, put forward by amongst others Whitehead and Tsikata (2003) and Ikdahl et al (2005), that in the international and domestic quest to formalize communal land tenure in sub-Saharan Africa, women are likely to end up with less secure land rights than envisaged in international law and national legislation. To reflect on this argument a part of the comprehensive South African land reform is explored serving as an example of domestic legislation that embraces the idea of formalizing communal tenure building on customary structures. This chapter further discusses the theoretical outcomes of this type of reform in relation to security of tenure; and puts this discussion in the context of poverty alleviation and social justice for the women involved. The overall purpose is to explore some of the many aspects of the delicate relationship between women’s right to secure land tenure and formalization of land rights along communal and customary lines. Communal ownership strategies and formalization of communal tenure have
great relevance in the larger Southern African Development Community (SADC) region, primarily because the solution to insecure tenure in terms of groups, communities or tribes as connected through customs and traditions are important for a country’s overall economic development, internal stability and security. Customary and statutory laws that govern land tenure may differ from country to country, however, women, especially rural women, form a nexus of extreme vulnerability in their relationship with customary law which must be acknowledged in legislation and elsewhere, in order to seek solutions that are suitable for improving women’s livelihoods and to further their economic development. From
it is feminist discourse as represented by African and Africanist feminist lawyers (such as Cook 1991; the WLSA series – WLSA 1992, 1994a, 1994b, 1994c, 1996; Molokomme 1991, 1995, 1996; Whitehead and Tsikata 2003) in order to understand the impact of contemporary, pluralistic African legal systems and the treatment of women by both customary and statutory laws. Embracing this theoretical approach the credibility of land reform based on customary structures as a tool to achieve social justice for women in South Africa and in the wider SADC context is further explored. The analysis focuses on two processes, first, the formalization of old order rights (customary rights) into new order rights and its impact on the security of tenure of women; and second, how customary structures as enforced by new legislation on communal ownership can distort and/or disintegrate women’s land rights by introducing traditional, mainly patriarchal, decisionmaking structures to govern new communal titles. South African statutory law has the potential of revealing key information regarding the effectiveness and justness of formalization strategies as discussed within the broader international community and within the SADC region with the aim of fostering conditions of economic development to boost poverty alleviation in rural settings. The significance of land reform has been interpreted differently in the different
SADC countries. For some, production and the question of privatization or nationalization of assets has been central in land reform, putting issues of expropriation and compensation high on the agenda. For others, such as South Africa, land reform has furthermore taken its point of departure in the racial inequalities of the past and the objectives to achieve reconciliation and social justice. South Africa is with its land reform trying to re-design the very fundament of society in its aim to redistribute, restitute and secure tenure of land. However, the South African government and a larger part of South African society have lately become increasingly aware of the negative impact such an all embracing land reform can have on food production, poverty alleviation and for the purpose of this chapter, women’s access to land and social justice. Any land reform is comprehensive, complex and by its nature often political.
Land reform is for example, as put forward by Ntsebeza and Hall (2007: 13) about identity and citizenship as well as security, production and development. The concept of land reform is a political and social arrangement that decisively differs from context to context and country to country. Nevertheless, since the need for a SADC Land Reform Support Facility was highlighted at the 2001 SADC Summit there has been an increased focus, within the region, on identifying land-related issues that bear similarity and to develop and implement pro-poor land and agrarian reform policies and programmes in support of the national development plans of the 15 member states. Furthermore, in 2008 the Deputy Executive Secretary of SADC pointed out that: ‘land is the most basic of all resources available for social and economic development and it is a key asset for poverty reduction in the SADC region’. The Deputy Executive Secretary further pointed out that about 70 per cent of the SADC population is rural-based where
